Walker v NSW

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Citation: (1994) 182 CLR 45

This information can be found in the Textbook: Blackshield, T, Williams G, Australian Constitutional Law & Theory: Commentary and Materials (5th ed, Federation Press, 2010), pp. 181-2

Contents

Background facts

  • Plaintiff was an indigenous person
  • Has been charged with a criminal offence by the State of New South Wales
  • The offence was committed at Nimbin, which is within the area of the Bandjalung ‘nation’ of indigenous people.

Argument

  • Common law is only valid in its application to indigenous people to the extent to which it has been accepted by them.

Legal issues

Judgment

Indigenous people – Sovereignty/Self-Determination

  • “The legislature of New South Wales has power to make laws for the peace, welfare and good government of New South Wales in all cases whatsoever.”
  • “The proposition that those laws could not apply to particular inhabitants or particular conduct occurring within the State must be rejected.”
  • Mabo v Queensland (No 2) does not specify that the Parliaments of the States or the Commonwealth lack the power to legislate for the indigenous people, or that the legislation is subject to the consent or adoption by those people.

Rule of Law – Equality before the Law

  • Furthermore, “Australian criminal law does not accommodate an alternative body of law operating alongside it”.
  • It is the basic principle of the common law that all people should stand equal before the law.
  • “A construction which results in different criminal sanctions applying to different persons for the same conduct offends that basic principle”.


References

Textbook refers to Blackshield, T, Williams G, Australian Constitutional Law & Theory: Commentary and Materials (5th ed, Federation Press, 2010)

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